Are You Ready for 2013? New Laws California Employers Should Keep in Mind Michael W. Kelly, Partner Squire Sanders (US) LLP michael.kelly@squiresanders.com 37 Offices in 18 Countries
Employee Access to Records (AB 2674) • Explicitly expands Labor Code § 1198.5 rights to “former” employees • Expands right to receive copies from just documents employees signed to all personnel records maintained “relating to the employee’s performance or to any grievance concerning the employee..” • Mandates employment records must be maintained for three years after employment terminates • Deadline for producing the copies is generally 30 days • Cap of 50 on number of responses per month per employer 2
Special Actions • Review records retention policy to insure materials are maintained for a sufficient period of time. • Consider adopting a policy designating a specific person to receive requests for records. • Train managers regarding the consequences of keeping their own files regarding employee performance. • Adopt procedures to redact the names of non-manager employees from documents placed in employee files when appropriate. • Track the number of requests per month in large multi-office employer. 3
Written Commission Agreements (AB 2675) • Employers contemplating payments to employees involving commissions must enter into written agreements setting forth the method of calculation • Agreement must also specify how commissions shall be paid • Employer must sign the agreement and get a signed receipt back from the employee • Commission means: “compensation paid to any person for services rendered in the sale of such employer’s property or services and based proportionately upon the amount or value thereof.” • Excludes short-term productivity bonuses, temporary variable incentive payments that enhance but do not decrease payments and profit-sharing unless it is fixed percentage of sales or profits. 4
Special Actions • Review pay plans and incentive compensation to determine which plans qualify as commissions • Convert commission plan documents to agreements • Distribute signed versions • Collect receipts • Track expiration dates 5
Wage Statement Violations (SB 1255) • Makes it substantially easier for employees to win damages for failure to comply with Labor Code § 226’s requirements for pay stubs • Up to $4,000 per employee Actual damages; or – $50 for the initial pay period – $100 for each subsequent pay period Employee is deemed to have suffered an injury in any pay period when the employee did not get pay statement or statement was not accurate and complete and the employee could not “promptly and easily” determine the information from the statement alone. • Attorney’s fees and costs 6
Special Actions • Review stubs to make sure all the required elements are present Inclusive dates of pay periods Hours and rates line up Indication of other periods if supplemental overtime recalculations are included • Maintain pay stubs for at least three years at place of employment or “at a central location within the State of California” • Temporary agencies must also break down hours worked and rate of pay by individual assignment effective July 1, 2013. 7
Accessing Social Media (AB 1844) • Bars employers from requiring employees to supply passwords and personal user id’s for social media sites • Bars requiring employees to log in to personal sites for manager to review • Applies to candidates as well as employees • Exception for situations where employer has reasonable suspicion that accessing the site will provide relevant information for an investigation 8
Special Actions • Train managers to be sure they are not violating rules • Weigh the seriousness of the infraction being investigated versus the likelihood of finding evidence before deciding to demand log in information • Consult with counsel because courts will likely weigh in regarding privacy rights 9
Religious Dress (AB 1964) • Policies regulating religiously mandated dress and grooming are covered by the fair Employment and Housing Act • Employers barred from segregating employees from the public on the basis of religiously-mandated dress • Undue hardship exception • Given remedial nature of statute, expect standard for undue hardship to be very high 10
Breastfeeding Part of “Sex” (AB 2386) • Definition of “sex” under FEHA is amended so that breastfeeding and related medical conditions fall within FEHA’s anti- discrimination and anti-harassment umbrella 11
Human Trafficking Notices (SB 1193) • Department of Justice ordered to prepare an 8.5” x 11” regarding human trafficking: “If you or someone you know is being forced to engage in any activity and cannot leave – whether it is commercial sex, housework, farm work, construction, factory, retail, or restaurant work, or any other activity – call . . .” • Signs supposed to be ready by April 2013 • Posted in a “conspicuous place near the public entrance” or “another conspicuous location in clear view of the public and employees where similar notices are customarily posted • $500 for first offense and $1,000 for each subsequent offense. • 12 categories of places including emergency rooms, urgent care centers and some businesses offering massages. 12
Credit Information • For those you who require CLE please note the following states have been approved, California, Arizona, New York, and New Jersey through state reciprocity rules. • Please complete the online affidavit included in the webinar reminder sent to everyone yesterday. An additional copy of the affidavit will also be emailed in a follow up communication tomorrow. • Don’t forget to include the affirmation code on the form. PDF a copy of the signed form to Robin Hallagan at robin.hallagan@squiresanders.com . Remember to complete the webinar survey immediately following the end of this presentation. You are required to complete this evaluation before receiving a certificate of attendance. 13
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